Free Mediation, Revisited

The prospect of elimination of all ADR administration by the the Los Angeles County Superior Court, discussed in a previous post, seems about to touch off another debate about pro bono mediation. LA's court-connected mediation panels have always had a strong pro bono component, and this rankles a lot of practicing and prospective mediators, who quite rightly feel that mediators deserve to be paid, just as judges, court personnel and the parties' counsel all need and expect to be paid for their services. A lot of mediators will therefore say good riddance to the court's pro bono panel, and hope that the prospects for free mediation will be quite limited in the future. On the other hand, others trying to get their start in mediation depend on the court panels to gain experience and to gain contacts with litigants who might hire them in future cases. Without experience, they may have difficulty finding work.

I have a role as an officer of the Southern California Mediation Association serving members who fall in both categories, so I'm going to try to avoid taking sides in this debate. But it might be useful to examine some of the rationales for free mediation to see where it might find a place in the system. First, everyone should recognize that there is a justification for pro bono mediation in small cases, particularly where the parties themselves might not be able to afford legal representation, and where the amount in controversy doesn't justify payment of additional fees for professionals.

There is also a rationale for free mediation similar to the rationale for a free public system of justice, regardless of the amount in controversy. We need courts to enforce and develop legal rules that guide everyone's conduct. When we sign contracts, we usually don't expect to have to go to court to enforce them, but we should be willing to contribute as taxpayers to the maintenance of that court system to motivate all of us to abide by our legal obligations. Society also has an interest in the resolution of conflict in general, and we should therefore be willing to provide a free public system for that purpose. If mediators can resolve conflicts more efficiently than judges, then the courts have every reason to refer people to mediators without charge, just as they do not require litigants to pay judges. Under this rationale, however, we would expect the courts to pay mediators as part of the court staff, and some courts do that. I'm thinking especially of the staff mediators who do an effective job of easing the workload in appellate courts. If we believe the courts should be in the business of resolving conflict by alternative means, we should expand these programs in trial courts as well, but unfortunately in this time of budget cuts, it is difficult to propose adding such staff.

But the main reason for the maintenance of free outside mediation panels seems to be evolution. A lot of court mediation programs started out by asking for volunteers in the legal community to help settle cases. They didn't used to require any special training for these programs, but depended on people willing to serve an occasional morning or afternoon to reduce crowding and delays in the court. A lot of programs still operate that way, such as the federal court mediation programs that rely on a large pool of volunteers who are only expected to serve the court on an occasional basis. (Those panelists are permitted to charge fees after a set number of hours of free services, however.)

The LA Superior Court panel started that way also, but grew so large because of the huge caseloads generated by this massive court system, that it began to resemble a training ground for professional mediators who then started demanding pay for their more-than-occasional service. When the court started requiring more training to gain access to the panels, these demands started to sound more reasonable. Courts are able to retain a supply of volunteer mediators because there are still a large number of people exploring the prospect of obtaining experience in the field, and hoping to succeed as private mediators. But many of these people are trapped in a vicious cycle, having to contribute substantial amounts of time to mediation for cases that do not justify such treatment, only because litigants have been conditioned to expect free mediation.

The LA Superior Court has attempted to reconcile these competing demands by trying to limit the cases suitable for pro bono mediation, and by encouraging the use of a pay panel of more experienced mediators. I can attest from having served for two years on the court's ADR committee that most of the judges on that committee are quite sympathetic to the demands of mediators to be paid for their service. But pro bono mediation remains over-utilized, in the view of many people struggling to make a living in this field.

Will the possible elimination of the court program force more litigants into choosing private, paid mediation? And wouldn't that be a good thing? Perhaps. Litigants have been conditioned to expect to be referred by the courts to mediation, and have also learned to take for granted the availability of a large free or reduced-fee panel. But they have also learned to appreciate the value of mediation. At this point, they ought to be willing to pay for the service, which will after all potentially save them more in attorney's fees in most cases than mediation will cost. On the other hand, if the court is not processing all the thousands of cases that are currently being referred out to mediation, inertia might just leave many of those cases languishing. They might not mediate at all if they aren't pushed into mediation, and if mediation costs money. On the whole, therefore, it seems that the elimination of court panels, except perhaps in small cases, might end up helping more established private mediators, even though this elimination would be expected substantially to reduce the demand for mediation services in total, and will probably make it more difficult for less experienced mediators to gain experience.

Biography

Joseph C. Markowitz has over 30 years of experience as a business trial lawyer. He has represented clients ranging from individuals and small businesses to Fortune 500 corporations. He started practicing with a boutique litigation firm in New York City, then was a partner in a large international firm both in New York then in Los Angeles, then returned to practicing with a small firm and on his own. In addition to general commercial litigation, Mr. Markowitz has expertise in intellectual property, employment law, entertainment law, real estate, and bankruptcy litigation. Mr. Markowitz has managed his own firm since 1994. Mr. Markowitz was trained as a mediator more than 15 years ago, and has conducted a substantial number of mediations as a member of the Mediation Panels in the Los Angeles County Superior Court, the District Court and Bankruptcy Court in the Central District of California, as well as private mediations. He has served since 2010 as a board member of the Southern California Mediation Association.

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